Aviation – Focus on Regulationhttps://www.hlregulation.com
Thu, 23 May 2019 23:42:36 +0000en-UShourly1https://wordpress.org/?v=4.9.10BREAKING: U.S. Court of Appeals for the DC Circuit Strikes Down FAA Drone Registration Rule for Hobbyisthttps://www.hlregulation.com/2017/05/19/breaking-dc-court-of-appeals-strikes-down-faa-drone-registration-rule-for-hobbyist/
Fri, 19 May 2017 20:49:55 +0000http://www.hlregulation.com/?p=9573In a ruling issued today, the U.S. Court of Appeals for the District of Columbia vacated the FAA’s Registration Rule for small unmanned aircraft (UAS or drones) that are operated for recreational purposes, otherwise known as “model aircraft.” If the ruling stands, hobbyist and recreational drone enthusiast will no longer be required to register their drones with the FAA. The ruling does affect requirements for commercial operators to register their UAS with the FAA.

]]>In a ruling issued today, the the U.S. Court of Appeals for the District of Columbia Circuit vacated the FAA’s Registration Rule for small unmanned aircraft systems (UAS or drones) that are operated for recreational purposes, otherwise known as “model aircraft.” If the ruling stands, hobbyist and recreational drone enthusiasts will no longer be required to register their drones with the FAA. The ruling does not affect existing requirements for commercial operators to register their UAS with the FAA.

In response to news events involving careless operators misusing drones, including crashes at stadium sporting events and hundreds of alleged incidents involving close-encounters between UAS and manned aircraft, shortly before Christmas 2015, the FAA rushed to promulgate a new registration rule that required model aircraft to be registered with the FAA. Since the rule went into effect, more than 800,000 operators have registered their drones with the FAA. To put that in perspective, there are only around 320,000 manned aircraft registered with the FAA.

The Court sided with Plaintiff hobbyist John Taylor who argued that the FAA’s Registration Rule, as it applies to model aircraft, directly violates Section 336(a) of the FAA Modernization and Reform Act of 2012, which states that the FAA “may notpromulgate any rule or regulation regarding a model aircraft.”

In an effort to sidestep Section 336(a)’s prohibition on promulgating rules regarding model aircraft, the FAA argued that the new Registration Rule, was not actually a new rule. Through a bit of legal gymnastics, the FAA tried to argue that under existing statutes requiring aircraft to be registered, the agency already had the authority to require model aircraft to be registered, and that they had previously exercised discretion not to enforce aircraft registration requirements with respect to model aircraft. Using this theory, the FAA claimed that the Registration Rule was not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.”

The Court rejected the FAA’s argument, stating:

“The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification – on people who previously had no obligation to engage with the FAA. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply. In short, the Registration Rule is a rule regarding model aircraft.” (Internal citation omitted.)

In addition to challenging the FAA’s registration rule, the Plaintiff also challenged the FAA’s prohibition contained in Advisory Circular 91-57A on the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. The Court dismissed the challenge to the Advisory Circular on procedural grounds, finding that Plaintiff missed the 60-day deadline for challenging the Advisory Circular.

Shortly after the Court’s ruling, the FAA released the following statement:

We are carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations. The FAA put registration and operational regulations in place to ensure that drones are operated in a way that is safe and does not pose security and privacy threats. We are in the process of considering our options and response to the decision.

Should the FAA wish to challenge the Court’s decision (and they almost surely will), there are two potential avenues for doing so. The first is to seek an en banc review by all of the judges sitting on the U.S. Court of Appeals for the District of Columbia. The second option, which the Court hinted at in its ruling, would be to seek a legislative fix from Congress, most likely in the FAA Reauthorization Bill that Congress will need to pass later this year to continue FAA funding. The Court wrote: “Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.”

]]>New EASA Consultation: Are Drone Pilots Heading for a Period of Regulatory Turbulence?https://www.hlregulation.com/2017/05/16/new-easa-consultation-are-drone-pilots-heading-for-a-period-of-regulatory-turbulence/
Tue, 16 May 2017 08:25:52 +0000http://www.hlregulation.com/?p=9549On 12 May 2017 the European Aviation Safety Agency ("EASA") opened a consultation regarding sweeping new regulations on the operation of unmanned aircraft systems (“UAS” or drones) in European airspace. Individuals and companies that are interested in the future of UAS operations in the European Union (“EU”) should carefully review the Notice of Proposed Amendment and consider participating in the review process by submitting comments and letting EASA know their views on all aspects of the proposed regulations.
Under current regulations, EASA only regulates large UAS with a take-off weight of 150kg or more and the regulation of UAS weighting less than 150 kg is reserved to Member States. The European Commission and European Parliament are currently trying to extend the EU's regulatory competences (jurisdiction) to include authority over all UAS weighing more than 250g. EASA's new proposal will likely spur debate among industry stakeholders over whether this new and innovative technology should be regulated more broadly by EASA or by the individual Member States.

]]>On 12 May 2017 the European Aviation Safety Agency (“EASA“) opened a consultation into sweeping new regulations on the operation of unmanned aircraft systems (“UAS” or drones) in European airspace. Individuals and companies that are interested in the future of UAS operations in the European Union (“EU”) should carefully review the Notice of Proposed Amendment and consider participating in the review process by submitting comments and letting EASA know their views on all aspects of the proposed regulations.

Under the current regulations, EASA only regulates large UAS with a maximum take-off weight of 150kg or more and the regulation of UAS with a maximum take-off weight of less than 150 kg is reserved to Member States. The European Commission and European Parliament are currently trying to extend the EU’s regulatory competences (jurisdiction) to include authority over all UAS weighing more than 250g. EASA’s new proposal will likely spur debate among industry stakeholders over whether this new and innovative technology should be regulated more broadly by EASA or by the individual Member States.

Who is in charge?

EASA, the European Parliament, and the European Commission argue that Member States’ regulation of UAS use is inconsistent and does not provide for adequate rules for cross-border UAS operations.

According to EASA, operators and manufacturers of UAS have “pleaded for a harmonisation” of the rules to allow for the creation of a European “market for UAS“. EASA argues that the current regulatory framework: (i) often creates barriers to entry for businesses in markets that could be made significantly more efficient by the use of UAS; and (ii) requires businesses to comply with a patchwork of different technical requirements in different Member States. Recognizing that a fragmented UAS regulatory system is hampering the development of a single EU market for UAS and cross-border UAS operations, the Notice of Proposed Amendment seeks to harmonise the regulation of UAS with a maximum take-off weight of 25kg throughout the European Economic Area (“EEA”).

According to EASA, if enacted, the draft regulation will create a harmonised, proportionate regulatory framework to oversee the use of UAS throughout the EU. Specifically, the proposed regulations seek to mitigate two primary types of UAS risks:

(a) “air risk” (i.e. the risk of a collision between a manned aircraft and a UAS, or collision with another UAS); and

(b) “ground risk” (i.e. the risk of a collision between a UAS and people on the ground or critical infrastructure).

How will the new proposed regulations work?

To regulate UAS operations in a “proportionate” risk-based manner the regulations categorize UAS operations into one of three categories, as set out below. In order to mitigate both “air risk” and “ground risk” (as well as a number of other related concerns EASA has regarding the use of UAS, including privacy risks) in relation to each of those categories the draft regulation proposes the following:

(a) “Open category” – includes UAS with a maximum take-off weight of less than 25kg, flying below 120m and within “visual line of sight” of the pilot. Open category UAS flights will be allowed to operate without prior authorisation from a “competent authority” (a governmental body responsible for the certification and oversight of UAS operations in a Member State). The UAS and UAS operator will be required to conform to certain standards, and the operator will have to be registered with a competent authority.

(b) “Certified category” – includes large or complex UAS that: (i) operate continuously over populated areas, (ii) “beyond visual line of sight” of the pilot, (iii) in congested airspace, or (iv) UAS used for the transport of people, and/or the carriage of dangerous goods. Certified category UAS flights must be authorised by a competent authority, and the remote pilot and operator must be approved by the competent authority. The UAS itself must also conform to certain specified standards.

(c) “Specific category” – includes all other UAS operations that do not fall into the open or certified categories. Specific category UAS flights must be authorised by a competent authority; and the operator of the UAS must be registered with a competent authority. The UAS itself must also conform to certain standards.

In addition to the above, the draft regulation would allow Member States to designate certain airspace as, amongst other things, being restricted to only certain categories of UAS flights (or alternatively as being open to all UAS flights regardless of whether they conform to the standards and regulations set out in the Notice of Proposed Amendment).

What are the next steps for the proposed regulations?

EASA’s public consultation on the proposed regulations and stakeholders’ ability to submit comments on the Notice of Proposed Amendment ends on 12 August 2017. You can comment on the proposals here.

After the consultation ends, we expect that EASA will submit its final proposed regulations to the European Commission, probably around Q4/2017, to be considered and likely adopted as a Commission Implementing regulation pursuant to the EASA ‘Basic Regulation’ 216/2008. EASA currently estimates that the regulations will become effective in 2020.

The authors and Oliver Travers, a trainee in our Brussels office who contributed to this entry, are members of Hogan Lovells’ Global UAS Practice Group. If you would like to communicate your views to EASA during this review period, let us know. We would be happy to help.

]]>Sky full of drones – Germany opens up for new drone opportunities as it introduces its new UAS Regulationhttps://www.hlregulation.com/2017/04/12/sky-full-of-drones-germany-opens-up-for-new-drone-opportunities-as-it-introduces-its-new-uas-regulation/
Wed, 12 Apr 2017 08:47:25 +0000http://www.hlregulation.com/?p=9456Germany has introduced a new “Regulation for the Operation of Unmanned Aircraft Systems” (“Drone-Regulation“). On 7 April 2017, the new Drone-Regulation entered into force adapting national legislation to the risk-based approach of the European Union and setting the way for innovative technologies. However, the new rules also contain identification and qualification obligations as well as

]]>Germany has introduced a new “Regulation for the Operation of Unmanned Aircraft Systems” (“Drone-Regulation“). On 7 April 2017, the new Drone-Regulation entered into force adapting national legislation to the risk-based approach of the European Union and setting the way for innovative technologies. However, the new rules also contain identification and qualification obligations as well as strict authorisation requirements for specific operations of Unmanned Aircraft Systems (“UAS”).

Some aspects of Germany’s new UAS regulations parallel the Federal Aviation Administration’s (“FAA”) Small UAS Rule (Part 107) that went into effect in the United States last August. Similar to the rules adopted by the FAA, Germany’s new UAS regulations place general restrictions on operating UAS beyond visual line of sight (“BVLOS”) and limit operations over people. Notably, however, Germany’s new regulations also provide a pathway for authorizing more advanced commercial UAS operations that go beyond the scope of the regulations in circumstances where it is safe to do so. This is similar to the waiver process adopted by the FAA in Part 107 for authorizing operations beyond the scope of the rule.

Germany recognizes the great potential inherent in drones in the private as well as the commercial sector and tries to reconcile the immense potential of future technologies with increasing privacy concerns. To achieve this goal, the new regulation introduces changes mainly to the current German Air Traffic Regulation (“Luftverkehrs-Ordnung“), i.e. generally abandoning the former distinction between Flight Models (RC Aircraft) and UAS and the general obligation to obtain an authorisation for UAS operation.

UAS with a total mass below 5 kg now generally do not require an authorisation, although there are certain exceptions to that rule.

While Germany maintains a prohibition to operate UAS BVLOS, the new Regulation aims at providing more flexibility by a system of exceptional authorizations for BVLOS flights. Such exceptional authorizations can be issued by the authorities of the Länder and the Drone-Regulation does not provide for any guidance when BVLOS flights may be permitted. Only for smaller UAS with a total mass of less than 0.25 kg may be operated beyond visual line of sight without any authorisation, if special video goggles enabling FPV (“First-Person-View“) flights are used.

Restriction of operations in residential areas

To increase the protection of privacy, the new regulation contains additional obligations when operating UAS in or around residential areas.

Authorizations will be required if the operation takes place within 1.5 km of a residential area.

Owners of residential property will have to expressly consent to UAS operation above their property, if their rights can be violated. Especially with regard to commercially used UAS for air delivery it remains to be seen how this provision will be handled in practice. While it may be feasible for operators to obtain consent for instance during the order intake process, such consent would not extend to third parties such as neighbors.

Exceptional authorizations to become more important

Many possible applications of UAS, especially for commercial purposes, will still rely on authorizations granted by the regional Air Traffic Authorities (“Landes-Luftfahrtbehörde“).Operations of UAS weighing more than 5 kg as well as operations by night generally require an authorisation.

For heavy UAS of more than 25 kg this authorisation is only granted exceptionally.

Exceptional authorizations will become crucial to overcome certain restrictions in the new regulation. This applies to operations in the vicinity of residential areas or beyond visual line of sight, as well as to operations of more than 100 meters above ground level. These exceptional authorizations lie within the authority’s discretion and will be granted following a risk assessment. While these revisions generally provide for more flexibility which commercial operators of drones have asked for frequently, there is a risk for a regulatory patchwork since the individual authorizations will be dealt with at Länder level. Operators active throughout Germany cannot be sure that operating a drone in Berlin will be treated by authorities in same way as by the officials in Bavaria.

Identification obligation and qualification certificate

The new regulation introduces an identification obligation (“Kennzeichnungspflicht“) as well as a qualification certificate (“Kenntnisnachweis“). The operation of UAS weighing more than 2 kg will require the operator to provide a drone-license to prove the operator’s capability to operate the UAS. All UAS weighing more than 0.25 kg will require a fireproof identification plate with the name and address of the owner.

What’s ahead?

The new German rules follow the risk-based approach taken by the European Union in August 2016. However, it can only be regarded as an interim stage, as new regulation on the European level from the EASA is expected in order to extend EU competences to UAS below 150 kg (for more details see here). For businesses, it will be necessary to monitor carefully how this new German legislation will be handled in practice, especially how authorities will exercise their discretionary powers to grant exceptional authorizations in the different German Länder.

Should you require any assistance in reaching out to authorities in Germany to request an authorization, please do not hesitate to contact the authors.

]]>Big News: Proposed Small UAS Rule for Flights Over People at White House for Reviewhttps://www.hlregulation.com/2016/11/15/big-news-proposed-small-uas-rule-for-flights-over-people-at-white-house-for-review/
Tue, 15 Nov 2016 17:30:53 +0000http://www.hlregulation.com/?p=9025In a major new development, the FAA has just sent to the White House Office of Information and Regulatory Affairs (OIRA) the proposed rulemaking for performance-based standards and means-of-compliance for the operation of small unmanned aircraft systems (UAS, or so-called “drones”) over unsheltered people not directly participating in the operation.

]]>White House Open to Stakeholder Meetings about Drone Operations Over People

In a major new development, the FAA has just sent to the White House Office of Information and Regulatory Affairs (OIRA) the proposed rulemaking for performance-based standards and means-of-compliance for the operation of small unmanned aircraft systems (UAS, or so-called “drones”) over unsheltered people not directly participating in the operation.

This is big news and an important step in moving drone policymaking forward. As most of you likely know, the current Part 107, which went into effect in August, does not allow for flights over unsheltered people not directly participating in the operation – in other words, anyone other than your remote pilot, visual observer, or anyone else essential to the flight operation.

But to take advantage of the safety and efficiency benefits of drones, companies need to be able to fly in urban and suburban environments, where people are. To use drones for disaster response, newsgathering, filmmaking, real estate, inspections, and more – it is critical that the government enable drone operations that reflect a real-world operating envelope.

This development means that a proposed rule for small UAS flights over people is coming soon. It also means that the White House is open to meeting with interested stakeholders during this time. NOW is the last realistic opportunity to influence this proposed rule before it is publicly released for comment.

OIRA is located within the Office of Management and Budget (OMB) within the Executive Office of the President. It is commonly said that OIRA is the most important agency in Washington, DC that nobody has heard of. OIRA reviews draft regulations before they are implemented and reviews and evaluates cost/benefit analyses to determine whether the benefits of a rule would justify the costs.

As part of OIRA’s review process, any member of the public—including UAS manufacturers, operators, and users—can request a meeting with the agency to discuss the proposed rule, what it should contain, and how the rule will impact them. The meetings are conducted by the OIRA Administrator or his designees, and a log of all meetings is publicly available.

A meeting with OIRA provides a golden opportunity for stakeholders to make their voices heard on this key policy and regulatory issue. The contours of the limitations and parameters for the eventual final rule for small drone flights over people will be largely shaped by the proposed rule, and thus companies that want to provide input on this vitally important issue and possible expansion of UAS operations now have the chance to provide their ideas directly to the White House.

We have significant experience with such OIRA meetings on UAS issues. If you would like to communicate your views to the White House during this review period, let us know. We would be happy to help.

]]>The European Parliament pushes for an EU-wide regulation for UAShttps://www.hlregulation.com/2016/11/11/the-european-parliament-pushes-for-an-eu-wide-regulation-for-uas/
Fri, 11 Nov 2016 09:47:38 +0000http://www.hlregulation.com/?p=9012The split of competences between the European Union ("EU") and its Member States has been a point of friction in the setting out of the future European rules on unmanned aircraft system ("UAS"). In December 2015, the European Commission advocated in its Aviation Strategy for the need for a common regulatory framework across the EU to ensure a single European UAS market. The European Aviation Safety Agency ("EASA"), headquartered in Cologne (Germany), would play a crucial role in defining the common European standards.

]]>The split of competences between the European Union (“EU”) and its Member States has been a point of friction in the setting out of the future European rules on unmanned aircraft system (“UAS”). In December 2015, the European Commission advocated in its Aviation Strategy for the need for a common regulatory framework across the EU to ensure a single European UAS market. The European Aviation Safety Agency (“EASA”), headquartered in Cologne (Germany), would play a crucial role in defining the common European standards.

On 10 November 2016, the European Parliament’s Committee for Transport and Tourism (“TRAN”) adopted the European Parliament’s position for the upcoming negotiations to revise the rules on aviation safety in the EU. Notably, TRAN’s proposal extends the mandate of EASA as supervisory body to all UAS weighing more than 250 grams. Currently, UAS of less than 150kg fall under the Member States competence. The TRAN proposal also grants EASA new responsibilities in UAS certification and the issue of guidelines.

This considerable shift in competence from national regulators to EASA can become an important source of disagreement in the legislative process. According to Article 100 (2) TFEU, the European Parliament and the Council may lay down appropriate provisions for air transport. However, under the principle of subsidiarity, the EU shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States (Article 5 (3) TEU)). The Italian Senate has raised concerns regarding the appropriateness of the Commission’s proposal in this regard. Italy argues that while the aviation sector generally has European dimension, the proposal has shortcomings as it does not lay down any rules concerning licenses of UAS operators. Absent such rules, the Commission’s proposal “does not appear to provide tangible added value” to Member States’ actions.

These concerns are mirrored by the fact that some of the EU Member States are in parallel developing their own regulatory frameworks for the use of UAS and could see the lowering of the weight threshold as an unjustified abdication of national competences.

The European Parliament will now start negotiations with the Council, which is composed by representatives of the EU Member States and would ultimately need to agree on the final text. The dispute about the competence for regulating UAS operations in Europe on EU or Member States level are likely to continue.

]]>On Friday, October 21, 2016, the Department of Defense (DoD) issued a final rule implementing changes to its December 2015 interim rule on DoD contractor cyber incident reporting and cloud computing. See our earlier reporting on the 2015 interim rule here. The final rule is effective upon the publication date, October 21, 2016. DoD has also issued a separate final rule for the Defense Industrial Base (DIB) Cybersecurity (CS) Activities program, effective November 3, 2016, that applies the same cyber incident reporting requirements to entities with other, non-procurement DoD agreements (e.g., contracts, grants, cooperative agreements, other transaction agreements, technology investment agreements, and any other type of legal instrument or agreement). See our post on that DIB final rule here.

The final rule includes a number of significant changes in response to public comments received on the interim rule. Although we will be releasing a more detailed analysis shortly, some key highlights of the final rule are:

Mirroring the recent Defense Industrial Base Cybersecurity Activities (DIB CS) final rule, the definition of “covered defense information” (CDI) in the Defense Federal Acquisition Regulation Supplement (DFARS) has been revised to include Unclassified Controlled Technical Information (UCTI) and all other types of Controlled Unclassified Information (CUI) on the CUI Registry. See our earlier analysis of the CUI final rule here.

In response to public comments, DoD has amended the rule to excludesolicitations and contracts for the acquisition of Commercial-off-the-shelf (COTS) items.

The final rule also amends DFARS clause 252.204–7000, Disclosure of Information, to clarify that fundamental research is exempt from the coverage of the rule (i.e., fundamental research, by definition, does not involve any CDI).

The rule has been amended to clarify that when a DoD contractor is not itself providing cloud computing services in the performance of the contract, but intends to use an external cloud service provider (CSP) to store, process, or transmit any CDI for the contract, then that external CSP must meet security requirements “equivalent to” those established by the government for the FedRAMP Moderate baseline at the time of award.

For additional information about this topic, please contact the authors of this posting or the Hogan Lovells attorney with whom you work.

]]>Today, Hogan Lovells’ Global Unmanned Aircraft Systems (UAS) Practice Chair Lisa Ellman testified to the House Small Business Subcommittee on Investigations, Oversight and Regulations on “Opportunity Rising: the FAA’s New Regulatory Framework for Commercial Drone Operations.”

Lisa discussed the remarkable recent growth in the commercial unmanned aircraft industry, the exciting opportunities for small businesses across the country that were unleashed by Part 107 opening the skies to commercial UAS, or drones, and the challenges for the industry that remain.

Colleges and universities across the country are finding new and innovative ways to use unmanned aircraft or “drones.” To name just a few, higher education institutions are using drones to support research and learning in areas like precision agriculture, wildlife habitat monitoring, and aerial surveying and mapping. They are using drones to film football practices, inspect their infrastructure, and shoot promo marketing videos.

Until earlier this week, the legal framework for flying drones for commercial purposes was complicated, cumbersome, and required a special exemption from the FAA. The FAA’s new small UAS rule (Part 107), which became effective on August 29, is a game changer. Colleges and universities are now broadly authorized to fly drones in the United States. Is your campus in compliance?

Topics covered during this webinar include:

Navigating the regulatory framework among hobbyist, commercial, and public aircraft operations

]]>A New Regime: Making the Jump from Section 333 UAS Operations to Part 107https://www.hlregulation.com/2016/06/23/a-new-regime-making-the-jump-from-section-333-uas-operations-to-part-107/
Thu, 23 Jun 2016 13:47:02 +0000http://www.hlregulation.com/?p=8694We are at a watershed moment in aviation history. As we reported yesterday, the FAA and DOT finally released their Final Rule for the Operation and Certification of Small UAS (Part 107), which will broadly authorize commercial UAS operations in the U.S. With the release of Part 107, many Section 333 Exemption holders are left wondering how Part 107 will impact their exemptions. And for the 7,000+ petitioners stuck in the FAA’s backlog of pending Section 333 petitions and amendments, many are wondering what the FAA will do with these pending petitions.

]]>We are at a watershed moment in aviation history. As we reported yesterday, the FAA and DOT finally released their Final Rule for the Operation and Certification of Small UAS (Part 107), which will broadly authorize commercial UAS operations in the U.S.

With the release of Part 107, many Section 333 Exemption holders are left wondering how Part 107 will impact their exemptions. And for the 7,000+ petitioners stuck in the FAA’s backlog of pending Section 333 petitions and amendments, many are wondering what the FAA will do with these pending petitions.

Current Section 333 Exemption / COA Holders

Do you currently have a Section 333 Exemption? If so, your exemption is still valid and you may continue to operate under it until it expires (usually 2 years from the date of issuance). Once Part 107 becomes effective (in mid- to late August of this year), you may continue operating under the conditions and limitations of your Exemption / COA, or you may elect to operate under Part 107.

So which should you choose? This will depend on the type of operation being performed and the specific terms of your Section 333 Exemption / COA. You will obviously want to operate under the regime that provides you with the most operational flexibility. For many operators, Part 107 will provide more flexibility than the conditions and limitations in the Exemption. By way of example, the conditions and limitations of most Section 333 Exemptions prohibit you from operating over someone else’s property unless you receive consent from the property owner, controller, or authorized representative with legal authority to grant such consent. This same requirement does not exist under Part 107. Another example is the 500-foot setback requirement from unsheltered non-participating persons. While Part 107 prohibits UAS operations over people not directly involved in the operation of the UAS, the rule does not mandate a 500-foot buffer from unsheltered, non-participating people. For many operators, these two issues alone will make the decision to operate under Part 107 a no-brainer.

On the flip side, there will be some instances where it might make more sense for you to continue operating under a Section 333 Exemption / COA, even after Part 107 becomes effective. If the current conditions and limitations in your Section 333 Exemption are easy for you to comply with and do not create any obstacles, then you can avoid having to go through the Remote Pilot Certification process (which will be a pre-requisite to conducting any operations under Part 107). Also, if your exemption authorizes operations that would only be permissible under Part 107’s waiver process, then you can continue those operations without having to go through the (yet-to-be fully explained) waiver process under Part 107. A simple example of this is a Section 333 Exemption that authorizes closed-set filming operations. Under Part 107, UAS flights can only be conducted over people directly participating in the operation of the UAS. This would include the UAS pilot, visual observer(s), sensor operator(s), and perhaps individuals tasked with securing the boundaries of the area in which the UAS is operating. People directly participating in the UAS operation would not include, for example, actors on a closed filming set. Under Part 107, to operate over those actors or anyone else involved in the filming production that is not directly participating in the flight operation, a waiver from the prohibition on flights over people in § 107.39 would be required. By electing to conduct closed-set filming under the Section 333 Exemption, the operator can avoid the need for this waiver.

If you are an operator flying under a Section 333 Exemption with a site-specific COA (i.e., something other than a blanket-COA) for operating closer than 5nm to an airport and in controlled airspace, you may also be inclined to continue operating under your existing Exemption and COA. This is because Part 107 prohibits operations in Class B, C, or D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport unless that person has prior ATC authorization. If an operator already has approval to operate in certain airspace under a COA, one can avoid the need to seek additional approval under Part 107 by continuing to operate under its Section 333 Exemption and site-specific COA.

Pending Section 333 Exemptions and Petitions for Amendment

Have you filed for a Section 333 petition for exemption, or petition to amend an exemption, and you are still waiting for a response? If so, your petition will be placed into one of three Tiers, as depicted in the FAA’s chart below:

The FAA has yet to clarify the exact procedures for Part 107’s waiver process, but the agency has stated that they will be notifying petitioners over the next few weeks which Tier their petitions falls in and that they will be providing additional guidance to petitioners at that time.

We hope you will join us for our upcoming Part 107 Webinar on Monday, June 27th at 3:00 p.m. EST, where we will continue our discussion of the intersection of Part 107 and the Section 333 Exemption process in greater detail.

]]>Huge News: FAA/DOT Release Small UAS Rulehttps://www.hlregulation.com/2016/06/22/huge-news-faadot-release-small-uas-rule/
Wed, 22 Jun 2016 15:11:04 +0000http://www.hlregulation.com/?p=8685The commercial UAS industry in the U.S. took a giant leap forward yesterday, as DOT and FAA released its Final Rule for the Operation and Certification of Small UAS (Part 107). At 624 pages long, there is certainly a lot to digest and we will be following up with more analysis of Part 107 throughout this week and next. For the time being, we wanted to provide you with a high-level overview of Part 107 and to identify a few areas where the FAA surprised us (mostly in a good way).

]]>The commercial UAS industry in the U.S. took a giant leap forward yesterday, as DOT and FAA released its Final Rule for the Operation and Certification of Small UAS (Part 107). At 624 pages long, there is certainly a lot to digest and we will be following up with more analysis of Part 107 throughout this week and next. For the time being, we wanted to provide you with a high-level overview of Part 107 and to identify a few areas where the FAA surprised us (mostly in a good way).

Timeline for Implementation

Part 107 will become effective 60 days after it is officially published in the Federal Register in the next 5-7 days making August the next milestone date for our industry.

Operator Certification

As a threshold matter, we would note that the FAA determined that calling the individual operating the UAS the “operator” might be confusing, so the person operating the UAS will now be referred to as the “Remote Pilot.” The Remote Pilot Certificate will replace current requirements to hold a manned pilot’s license, which is one of the biggest hurdles to operating UAS commercially under a Section 333 Exemption.

To be eligible for a Remote Pilot Certificate, a person must:

Be 16 years of age;

Be able to read, write, speak and understand English;

Pass an aeronautical knowledge exam which will be administered at one of the FAA’s 700+ approved testing centers around the country; and

Pass a TSA security background check.

Waiver Process

Part 107 contains a process for seeking a certificate of waiver to authorize deviations from certain aspects of Part 107. We will provide additional analysis on the waiver process in the coming days, but for now it is important to note that the waiver process establishes a pathway for conducting certain operations when an applicant demonstrates that a proposed UAS operation can be conduct safely, including, for example:

Flights directly over non-participants;

Night flights;

Flights beyond visual line of sight; and

Operation of multiple small UAS by a single pilot.

Surprises in Part 107

Part 107 largely tracks what the FAA originally proposed in the Notice of Proposed Rulemaking (NPRM) back in February 2015. There were however a few pleasant surprises that will benefit a wide range of commercial UAS operators.

Maximum Operating Altitude

The proposed rule initially limited UAS operations to no more than 500’ AGL. Under the Final Rule, the maximum operating altitude has been reduced to 400’ AGL. However, UAS will be able to operate above 400’ AGL if the UAS is flown within a 400’ radius of a structure, and the UAS does not fly higher than 400’ above the structure’s immediate uppermost limit. This means for example, that if a UAS were operating near a 1000’ building, the UAS could conceivably be operated at an altitude of 1400’ AGL if it remained within a 400’ radius of the building. This change will likely benefit UAS operators that perform inspections of tall structures, such as wind turbines and towers.

Operating from a Moving Vehicle in Sparsely Populated Areas

Under Part 107 the FAA will allow a UAS to be operated from a moving vehicle in sparsely populated areas. This change will likely benefit companies that need to perform inspections of objects that extend for miles, such as power lines, pipelines, and railways. The FAA’s visual line of sight requirements limit the usefulness of using UAS to inspect these types of linear assets because it is simply not practical to have to stop operations every mile or so to get up and move the ground control station. Permitting operations from a moving vehicle in sparsely populated areas will allow UAS operators to extend the range of UAS operation, while also satisfying the FAA’s visual line of sight requirements.

Clarifying the Prohibition on Flights Over People

Part 107 will prohibit UAS operations over a human being who is not directly participating in the operation of the UAS (e.g., the pilot and visual observer), or located under a covered structure or inside a stationary vehicle that provides reasonable protection from a falling UA. While this restriction is not as onerous as the FAA’s 500 foot buffer rule from non-participants while operating under a Section 333 Exemption, many commenters were concerned with the fact that the FAA never clarified in the NPRM what it meant to “operate over” a human being. In response, the FAA clarified in its Part 107 analysis that, the term “over” means UAS flight directly over any part of a person. While this restriction will still create problems for some UAS operations, particularly those in more urban and suburban environments where it is difficult to control the flow of people on the ground, Part 107’s restriction on flights directly over people is a lot less restrictive than what is currently required for most operators flying under a Section 333 Exemption.

External Load, Towing and Carrier Operations

Contrary to what was proposed in the NPRM, the FAA will permit external load and towing operations in some circumstances. Part 107 will allow limited carrier operations involving transport of property for compensation (i.e., package delivery). The one major caveat however is that the carrier operations would have to comply with Part 107’s visual line of sight requirement. While the visual line of sight requirement is a waivable requirement under Part 107, the requirement will not be waivable in the context of carrier operations.

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There is a lot more to cover in Part 107, and if you are not inclined to read the 600+ page rule, the FAA’s 3-page summary of Part 107 is available here. In the coming days we will provide you with more details on the FAA’s plan for current Section 333 Exemption holders and those with pending petitions. We will also dig a bit deeper into the FAA’s new waiver process under Part 107.

As previously announced, we hope you will join us on Monday, June 27th at 3:00 p.m. EST for a complimentary Webinar to explore Part 107 in greater detail and discuss what it means for you and your business in the short term and in the long term. Click here to register for the webinar.